As in BeVier, Officer Kirby had alternative sources of information which could have confirmed or disputed Ms. Davis' story -- in this case, Ms. Davis' rental agreement and the word of the car rental agent. Instead, Officer Kirby allegedly chose to arrest without reasonable investigation. Such an arrest violates the arrestee's Fourth Amendment rights.
Ms. Davis also adequately alleges a violation of the Fourth Amendment for Officer Kirby's failure to arrest her without a warrant. Davis alleges that the arrest took place in her home. Under Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), police officers may not effect certain nonemergency arrests in the arrestee's own home without a warrant.
B. Action Under Color of State Law
Since Ms. Davis properly alleges a deprivation of her federal rights, the court now turns to the second element necessary for a § 1983 claim, whether the deprivation was caused by a person acting under color of state law. The first question raised by Officer Kirby in this regard is whether Ms. Davis must plead something similar to "Officer Kirby was acting under color of state law" in order to state a claim under § 1983. The short answer to this is no. As long as the court may reasonably infer from the facts alleged that the defendant was acting under color of state law, the plaintiff has successfully alleged this element of a § 1983 claim.
Officer Kirby next contends that Ms. Davis's allegations do not show that Kirby was acting under color of state law, as Davis fails to specify that Kirby was on duty or acting officially. Officer Kirby attempts to elevate form over substance. As the Sixth Circuit artfully stated: "The fact that a police officer is on or off duty, or in or out of uniform is not controlling. 'It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.'" Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), cert. granted, 425 U.S. 910, 47 L. Ed. 2d 760, 96 S. Ct. 1505, cert. dism'd as improvidently granted, 429 U.S. 118, 50 L. Ed. 2d 269, 97 S. Ct. 514 (1976) (quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D.Pa. 1968).
The Seventh Circuit has a similar focus when analyzing whether a defendant is acting "under color of state law." In Greco v. Guss, 775 F.2d 161 (7th Cir. 1985), the record did not reveal whether a deputy sheriff who served a distraint warrant was on or off duty at the time of service. In concluding that the deputy was acting under color of state law, the court cited with approval a litany of federal cases that disregarded mere labels and examined the circumstances surrounding the deprivation. Id. at 168-69. The court also cited its own decision in Davis v. Murphy, 559 F.2d 1098 (7th Cir. 1977), which held that an off-duty officer could still act under color of state law. In Davis, the defendants identified themselves as police officers, carried their badges and guns and were required by department regulations always to be on or subject to duty.
Ms. Davis's complaint plainly describes a police officer acting in her official capacity as a police officer. Paragraph 2 of the complaint states: "Debra Kirby is and was at all times relevant hereto, a duly-appointed and acting police officer employed by the City of Chicago." She allegedly was riding in a police squad car and was in uniform. Officer Kirby questioned Ms. Davis concerning the registration on her car and used the police squad car telephone to access the police computer system, both of which are standard police work. The Blue Island police officers interacted with Officer Kirby and treated her as acting in her official capacity. Finally, and perhaps most importantly, Officer Kirby ordered Ms. Davis to accompany her to the Fifth District station. She was present when Ms. Davis was brought before the front desk. There is no doubt, on the facts alleged, that Officer Kirby was not acting "in the ambit of [her] personal pursuits," Screws v. U.S., 325 U.S. 91, 111, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945), but her actions were committed in the performance of actual duty. Cf. Bonsignore v. City of New York, 683 F.2d 635 (2nd Cir. 1982) (police officer shot his wife off-duty, in the circumstances of a purely personal, domestic matter and the court found his act was "not committed in the performance of any actual or pretended duty" and therefore found no action under color of state law).
Officer Kirby's final argument is that even if she was on-duty and in uniform at the time of the incident, she was outside of her jurisdiction -- recall that she allegedly arrested Ms. Davis in Blue Island, not Chicago -- and therefore was not acting under color of state law. Officer Kirby relies on Firman v. Abreu, 691 F. Supp. 811, 813 (S.D.N.Y. 1988), where the court held that when a peace officer has "no colorable authority to act in the jurisdiction in which he purports to act," he or she has not acted under color of state law. Kirby also relies on Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976), a case to the same effect as Firman.
Officer Kirby's reliance on these cases is misplaced. First, Firman and Askew involved competing jurisdictions in two separate states. In Firman, a New York police officer performed an allegedly illegal act in New Jersey; in Askew, the police officer was from Missouri, on assignment in Illinois. In this case, all of the defendants' actions occurred in Illinois. Arrests made by police officers employed by Illinois municipalities outside of the employing municipality but within Illinois borders are not invalid on grounds of being outside the officers' jurisdiction. See Ill.Rev. Stat. ch. 38, § 107-5(c) (1987); People v. Durham, 71 Ill. App. 3d 725, 390 N.E.2d 517, 28 Ill. Dec. 350 (1979); People v. Weaver, 100 Ill. App. 3d 512, 426 N.E.2d 1227, 55 Ill. Dec. 853 (1981). Under the facts alleged in Ms. Davis's complaint, Officer Kirby was acting under color of state law when she arrested and detained Davis.
Count II purports to be a claim for false imprisonment. Officer Kirby's sole reason for dismissing it is that it is unclear whether Ms. Davis claims false imprisonment in violation of her federal rights or the common-law tort of false imprisonment. Officer Kirby never suggests, however, that Ms. Davis has failed to state either cause of action in Count 2, the only ground upon which this court could dismiss Count 2 under Rule 12(b)(6). Indeed, Ms. Davis has stated a claim of false imprisonment under federal law, for to the extent that Officer Kirby arrested Ms. Davis without probable cause or a warrant, she falsely held Ms. Davis in violation of the Fourth Amendment. The court will leave discussion of whether Ms. Davis has adequately alleged the tort of false imprisonment for another occasion.
Officer Kirby's motion to dismiss Counts 1-2 of Ms. Davis's complaint is denied.
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